The Preventive State: The Challenge of Preventing Serious Harms While Preserving Essential Liberties by Alan Dershowitz

[johnkarls]

Originally Posted by johnkarls » Mon Apr 28, 2025 1:44 am – 124 views in Sec. 3 (Possible Topics for Future Meetings) before being transplanted here


I propose that we read “The Preventive State: The Challenge of Preventing Serious Harms While Preserving Essential Liberties” by Alan Dershowitz (Encounter Books 5/20/2025 - 193 pages sans notes & index - $24.99 + shipping or $16.19 Kindle from Amazon.com).

Disclaimer – Yes, Prof. Dershowitz’ career at Harvard Law School began 1964 teaching first-year criminal law but, although that was my first year at HLS, I never had him for that or any other course.

BTW, he always refused to defend any client more than once (including Pres. Trump for his first impeachment trial in the U.S. Senate) for the oft-expressed reason that he did not want to become a permanent defender of any organized-crime malfeasor.

Accordingly, he handed off many such defenses to Harvey Silverglate (a regular participant in the weekly Monday Zoom chats of my HLS Class of 1967) to whom he then offered occasional advice.


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Book Description per Amazon.com - PLEASE SEE PROF. DERSHOWITZ' OWN BOOK DESCRIPTION IN THE IMMEDIATELY-FOLLOWING SECTION

#1 Best Seller in Comparative Politics (this 22 days prior to publication)

You shall thank Alan Dershowitz for writing this [valuable] book.
—Stephen Breyer, Former Associate Justice of the Supreme Court

If reliable but uncertain intelligence predicted a mass casualty terrorist attack and indicated likely suspects, what preventive actions would be constitutionally authorized? Detention? Interrogation? Torture? What if the attack involved a weaponized virus? Should the government compel widespread inoculation that might kill hundreds of people while saving millions? What if an article describing how to circumvent the inoculation mandate was about to be published? Should censorship of the article be authorized?

These are the sorts of questions Alan Dershowitz has been asking for more than 60 years, in his teaching, writing, and litigation. Now, at age 86, he has written his magnum opus. In it, he suggests an overarching jurisprudential framework that would set limits to the ballooning power of what he calls “the preventive state.”

This important book offers unprecedented insights into one of the most underexamined developments of our age: the growing magnitude and frequency of cataclysmic threats, coupled with the increasingly effective—but increasingly intrusive—tools intended to predict and prevent them.

Dershowitz responds to the urgent need for a jurisprudence that provides balance and accountability as both dangers and preventive capabilities increase, threatening our security and our liberties. This masterful analysis should be read by everyone who cares about security, liberty, and democracy.


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Author Prof. Dershowitz' Own Book Description In 4/27/2025 Interview With Mark Levin

Prof. Dershowitz –

The thesis of the book is that you cannot wait for Iran to develop nuclear weapons and try to deter it. You don’t deter people who want to die. When Rafsanjani, the head of Iran, said (NB: Rafsanjani was President of Iran 1989-1997 but Ayatollah Ali Khamenei has been the Supreme Leader since Ayatollah Ruhollah Khomeini’s death in 1989) – "When Iran develops nuclear weapons they will bomb Israel – “one bomb state” – kill 2 million people – then Israel will retaliate and kill 10 million Muslims but then it’s worth it." You can’t deter people like that.

You have to apply the Begin Doctrine. (NB: Menachem Begin was Israeli Prime Minister 1977-1983.) He said Israel cannot depend on deterrence. It cannot deter or kind of control a nuclear enemy. It has to prevent the enemy from getting nuclear bombs.

Just like if England and France had gone after Nazi Germany in the late 1930’s before it became powerful, they would have saved hundreds of millions of lives.

I think the same thing is true. If Israel is allowed to destroy Iran’s nuclear capability, history will demonstrate that it has saved many lives, not only Israeli and Iranian lives, but lives all through the Middle East and around the world. This is the time for prevention.

Israel became The Preventative State as the result of the Begin Doctrine and it has to use preventive tactics and in my book, The Preventative State, I go through all the reasons why prevention is essential to saving lives instead of deterrence and that we are moving toward prevention as we create more cataclysmic threats to the world like a nuclear Iran and we have the capacity. Israel can destroy Iran’s nuclear reactor with minimal casualties and it should do so and the United States should stand behind it and I get very worried when there are people talking in President Trump’s ears who are saying – “No, no, no, we can contain, we can control, we can negotiate.” No, you cannot do that with Iran. There is only one answer and that is that Iran’s nuclear capacity must be prevented.

Mark Levin –

And the other thing Alan is if they’re wrong, the people whispering in the President’s ear – consequences to the world are dire. They are dire for a thousand years, not just dire tomorrow. If you and I are right, it’s case over. It’s done. The hard work’s been done.

And you know what else? It’ll have to be done more than once because there are going to be other terrorist regimes over time that have access to the technology and your Prevention Doctrine and the Begin Doctrine is (sic) going to have to win the day if we’re going to save humanity.

They’re building intercontinental ballistic missiles to hit the United States – not Tel Aviv. That’s exactly what they’re doing. Final word.

Prof., Dershowitz –

Prevention is the key to saving lives today. You have to make sure the preventative measures you take don’t endanger basic liberties, but Israel has proved they can do it, the United States has proved you can do it, and the negative is that our failure to do it in the 1930’s produced Nazism, the Holocaust and so many preventable deaths. Let’s make sure we don’t do that again and I think The Preventative State using prevention in the right way can save lives and benefit humanity. That’s our future.

Mark Levin –

And it can prevent a World War III because if Iran gets nuclear weapons, the others are going to want nuclear weapons and these regimes, not one of them is a humane regime.


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Author Bio per Amazon.com

ALAN DERSHOWITZ has been litigating, teaching, and writing about law and policy for more than 60 years. He has written 55 books and more than 1,000 articles. Many of today’s world leaders are among the 10,000 students he has taught. He has represented and advised presidents, prime ministers, and business leaders.

Called “the world’s best-known lawyer” and its most prominent defender of civil liberties, he has litigated and won hundreds of cases in multiple countries. He has received numerous honorary degrees, medals, and other honors for his work. One such distinction was bestowed on him by Nobel Peace Prize laureate Elie Wiesel who said: “If there had been a few people like Alan Dershowitz during the 1930s and 1940s, the history of European Jewry might have been different.”

Most of his cases and causes have been pro bono, including his defense of dissidents, such as Natan Sharansky, Václav Havel, and Julian Assange.

Dershowitz graduated first in his class at Yale Law School and was the editor-in-chief of the Yale Law Journal. He taught at Harvard for 50 years, where he offered courses on issues ranging from criminal, constitutional, family, and Jewish laws to psychiatry, neurobiology, mathematics, literature, philosophy, and even baseball. His primary academic interest has been on prediction and prevention of harmful conduct, which he developed into a course and taught during most of his career. Philosophically, he considers himself a constitutional libertarian, meritocratic egalitarian, and constructive contrarian.

At age 86, he continues to write and consult, while spending more time with Carolyn, his wife of 39 years, his three children, and two grandchildren.


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Book Review Excerpts per Amazon.com

No one but Alan would seek to bring a common mode of thought to issues as diverse as bail, climate change, and terrorism.
—Lawrence Summers, President Emeritus, Harvard University

An urgently important book about how to balance the desire to have governments prevent crises with the need to safeguard fundamental civil liberties.
—Erwin Chemerinsky, Dean, University of California-Berkeley School of Law

A compelling capstone to Alan Dershowitz’s unparalleled analysis and experience throughout his distinguished career as a professor and litigator.
—Nadine Strossen, John Marshall Harlan II Professor of Law Emerita, New York Law School

He elucidates the intricate issue of preventive law, while updating it to the unforeseen challenges of the twenty-first century.
—Steven Pinker, Johnstone Family Professor of Psychology, Harvard University

Dershowitz provides a brilliant roadmap for addressing the conundrum that maximizes both safety and liberty while recognizing that tradeoffs are inevitable.
—Jack L. Goldsmith, Learned Hand Professor of Law, Harvard University

With clarity, wisdom, wit and breadth of understanding, Alan Dershowitz argues that the legal system should be revamped to prevent-not just punish-wrongdoing.
—Jesse Fried, William Nelson Cromwell Professor of Law, Harvard University

[johnkarls]

Originally Posted by johnkarls » Thu May 01, 2025 3:08 am
.

It has just been announced that Prof. Dershowitz will be talking about his book at “high noon” EDT on Wed June 11.

If you would like to attend and aren’t a member, please let me know and I’ll sign you up.

The NYC Harvard Club Notice –

NOON TALK: Alan Dershowitz on How to Protect Liberty While Preventing Catastrophe

Wednesday, June 11 @ 12:00 pm – 01:00 pm ET

How far should the government go to prevent the next crisis—without crushing our freedoms?

Join legendary constitutional lawyer and civil liberties advocate Alan Dershowitz as he presents his boldest work yet: The Preventive State, a timely and provocative new book exploring how democracies can respond to looming threats—terrorism, pandemics, climate disaster—without sacrificing the liberties that define them.

In an era of ballooning surveillance powers and escalating global dangers, Dershowitz lays out a powerful framework to balance security and freedom.

Backed by a lifetime of legal scholarship and courtroom battles, this talk is a must-attend for anyone concerned about the future of law, liberty, and the limits of state power.

As Justice Stephen Breyer puts it: “You shall thank Alan Dershowitz for writing this book.”

Meagan Hill, Program Committee

[johnkarls]

Originally Posted by johnkarls » Sun May 11, 2025 2:40 am
.

Perhaps this movie should not be mentioned since Prof. Dershowitz’ book is very serious about punishing Iran BEFORE it takes action with its impending nuclear weapons.

Because Iranian Supreme Leader Ayatollah Ali Khamenei makes no secret of his intentions when he so often leads crowds in chanting as he so obviously relishes –

“Death to Israel” and “Death to the Great Satan” !!!

NB: The “Great Satan” is the United States.

Which is why Iran would NOT agree to Obama’s 2015 Nuclear Agreement (aka JCPOA) unless it –

• guaranteed Iran nuclear weapons by 2030,

• failed to provide for “any time, any where” inspections, and

• failed to restrain Iran’s feverish development of INTER-CONTINENTAL ballistic missiles WHOSE TARGET, OF COURSE, WOULD BE THE GREAT SATAN!!!

Obama agreed to all three fatal flaws!!!

[Please see our 1/20/2021 letter to President Biden imploring him not to re-enter the JCPOA (Pres. Trump had withdrawn the U.S. during his first term) unless ALL THREE of these fatal deficiencies were rectified – available for download at viewtopic.php?f=23&t=2021&sid=b7779cfb9 ... 8ac6a2fa40.]

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Taking Action BEFORE A Crime Is Committed

Prof. Dershowitz, of course, is addressing THE PREVENTION of a CRIME AGAINST HUMANITY before it is committed.

“Minority Report” starring Tom Cruise in 2002 also deals with preventing crimes before they are committed.

The IMBd description (Tom Cruise is John Anderton) –

In the year 2054 A.D. crime is virtually eliminated from Washington D.C. thanks to an elite law enforcing squad "Precrime". They use three gifted humans (called "Pre-Cogs") with special powers to see into the future and predict crimes beforehand. John Anderton heads Precrime and believes the system's flawlessness steadfastly. However one day the Pre-Cogs predict that Anderton will commit a murder himself in the next 36 hours. Worse, Anderton doesn't even know the victim. He decides to get to the mystery's core by finding out the 'minority report' which means the prediction of the female Pre-Cog Agatha that "might" tell a different story and prove Anderton innocent.

[johnkarls]

Originally Posted by johnkarls » Tue May 13, 2025 12:40 am
.

Since Prof. Dershowitz’ book has not been released yet, it is wise to reduce to writing three mental notes regarding the right to strike first --

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International Law – The Right of Self Defense

The 1967 Arab-Israeli War (aka The Six-Day War) is usually cited as the classic example of a first strike comprising the legitimate exercise of the “right of self defense.”

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By way of background --

At the beginning of World War I, the Ottoman Empire (long since dubbed “the sick man of Europe”) no longer stretched from the Atlantic to India.

Indeed, the Ottoman Turkish Empire losing Egypt was a sad tale -- starting with the Suez Canal being built in 1869 by France and Egypt, with the Ottoman Turkish Empire being forced by financial hard times to sell its 50% stake to the British in 1875. To protect their investment in the face of local unrest, France and Britain sent warships to Ottoman-ruled Egypt in 1882 and, when that show of force failed to quell the disturbance, Britain invaded and captured Egypt from the Ottomans and made it a British colony.

On the eve of World War I, the Ottoman Empire only comprised modern-day Turkey, Lebanon, Syria, Iraq, Israel, Jordan, and the Arabian Peninsula (Saudi Arabia, Kuwait, Bahrain, Qatar, the United Arab Emirates (UAE), Oman and Yemen).

BTW, American historians went to great lengths to prevent the American public from knowing that it was fighting the Holy Roman Empire (the assassination of whose heir apparent led to World War I) by finding excuses to call it the Austro-Hungarian Empire or the Habsburg Empire.

BTW, how many high school history courses still mention Lawrence of Arabia, the famous British Army Officer who led the Arabs in their Middle East War against the Ottoman Turks during World War I? And how many people remember the 1962 Lawrence of Arabia movie starring Peter O’Toole which won 7 Oscars including Best Picture?

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By way of background (cont’d) --

On July 26, 1956, Egypt decided to nationalize the Suez Canal JUST 8 DAYS AFTER ACHIEVING FULL INDEPENDENCE FROM BRITAIN. In response, France and Britain invaded Egypt on October 29, 1956. Israel joined France and Britain because (1) Egypt had blockaded in 1953 the Straits of Tiran at the head of the Gulf of Aqaba leading to the Israeli port of Elath which, following the Egyptian seizure of Suez, meant Israel had no access to the Indian Ocean, and (2) under Egypt, Fadayeen terrorist camps flourished in Gaza.

President Eisenhower pulled out all the stops in calling a halt to the invasion for a variety of reasons including (1) his disgust in trying to condemn the Soviet Union crushing the 1956 Hungarian Revolution while France and Britain were engaged in a similar action in Egypt, and (2) Soviet threats to rain nuclear missiles on Britain, France and Israel. Although Britain and France vetoed resolutions in the U.N. Security Council, Eisenhower took the issue to the U.N. General Assembly which created the first U.N. Peace-Keeping Force. Eisenhower also threatened Britain and France economically to force submission (which was effective since neither had fully recovered from World War II).

The “Six-Day War” occurred in June 1967. Egypt had once again closed the Straits of Tiran to Israel and massed 1,000 tanks and 100,000 troops on its border with Israel, while Syria had been attacking Israel for quite some time with artillery and rockets from the Golan Heights. In response to the Egyptian military build up, Israel launched a preemptive attack against Egypt. Jordan and Syria quickly joined in the hostilities. Material support was provided by Iraq, Saudi Arabia, Sudan, Tunisia, Morocco and Algeria.

The hostilities lasted only six days (June 5-10) with Israel capturing not only the West Bank from Jordan and Gaza from Egypt, but also the Sinai Peninsula from Egypt and the Golan Heights from Syria.

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The United Nations

Article 51 of the U.N. Charter provides --

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Per the United Nations website re Article 51 (https://legal.un.org/repertory/art51/en ... _art51.pdf), there have only been three occasions in the proceedings of the Security Council when questions concerning the application or interpretation of the provisions of Article 51 arose and they did not include The 1967 Arab-Israeli War.

Nevertheless, quite a bit has been written about whether Article 51 bars a pre-emptive (first strike) war from being a legitimate exercise of the right of self defense.

NB: Attorneys will quickly note that Article 51 only talks about the situation in which “an armed attack occurs” and does NOT address the situation in which an armed attack is imminent/threatened and a defensive “first strike” is required.


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The Law of Conspiracy

I do not recall whether this is solely a prominent feature of U.S. law, or whether it is also a feature of international law.

If there is a conspiracy to commit a crime AND ANY MEMBER OF THE CONSPIRACY TAKES A SINGLE ACTION IN FURTHERANCE OF THE OBJECTIVE OF THE CONSPIRACY – then ALL MEMBERS OF THE CONSPIRACY are guilty of the crime which was the objective even though the crime is never brought to fruition.

Hopefully, Prof. Dershowitz will address the issue of whether the Law of Conspiracy is a feature of international law.

If so, Iran and zillions of individuals have taken beau coup steps to nuke both Israel and The Great Satan!!!


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Confession

Certainly Iranian Supreme Leader Ayatollah Ali Khamenei’s frequently leading crowds in chanting “Death to Israel” and “Death to The Great Satan” comprises a confession of intent to destroy both Israel and the United States.

Hopefully, Prof. Dershowitz can inform us whether a confession of intent to commit a future crime is sufficient for conviction of that crime before its commission.